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2017 DIGILAW 1165 (ORI)

Prasanta Kumar Biswal v. State of Orissa

2017-10-17

SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, wherein the office orders dated 26.10.2005 and 31.10.2005 has been sought for quashed. The office order dated 26.10.2005 is a decision of the Opposite party-Orissa Lift Irrigation Corporation, by which the applications have been invited from its employees for its separation under Voluntary Retirement Scheme in view of the decision of the Government of Odisha through its Water Resources Department as contained letter No.3185 dated 10.10.2005. The letter dated 31.10.2005 is the salary and wages of the employees who is shown to be under the surplus/zero category has been stopped. 2. Case of the petitioner in brief is that he is an employee of the Orissa Lift Irrigation Corporation (in short OLIC), wherein he was working as NMR capacity but subsequently vide order dated 11.04.1997, his service has been regularized by taking him under regular establishment, thereafter he has started discharging his duties. Further case of the petitioner is that while he was continuing in service, opposite party no.3 has issued an office order on 23.02.2004 for making application for separation from service. According to the petitioner, he is not inclined to get separation from service and as such the compulsion of the Corporation to separate him from service is nothing but an arbitrary action of the power, hence this writ petition. 3. Opposite party-Corporation has filed counter affidavit inter alia therein it has been stated that the Government of Odisha has taken decision to dispense with 7341 number of employees of the OLIC in the process of restructuring of the Corporation and the principle of “last come first go” was the guiding principle of dispensation in order to facilitate the process of right sizing the Corporation. Cabinet also approved the VRS/VSS package, the said decision has been taken by the authority on 26.10.2002 as would be evident from Annexure-A/2 annexed to the counter affidavit. The Corporation in pursuance of the decision of the Government, has resolved to implement the said decision and fixed 15.1.2003 as the last date of submission of the application for VRS/VSS which was notified to all concerned, intending employees were directed to make application within the stipulated period, failing which they have been warned to be removed from service in accordance with law as per the decision of the Government/Cabinet. 4. 4. It has been stated that in pursuance of the aforesaid notification nearly 5439 employees took voluntary retirement w.e.f. 13.04.2003 and 31.5.2003, but some of the employees have not applied for VRS/VSS within the stipulated time, hence the Government vide its letter dated 17.02.2004 has given another chance to the left out employees to apply for VRS and pursuant to the said notification nearly 950 employees applied and took VRS. The petitioner, in spite of the chance given by the Corporation has not availed the said opportunity and as such he has taken the risk of retrenchment. It has been stated therein that the Corporation is bound to act upon on the basis of the decision taken by the Government which was also concurred by the Labour Commissioner under the provision of Section 25(n) of the Industrial Disputes Act, 1947, in which permission has been granted to him vide order dated 28.03.2007 for retrenchment of the workmen including the petitioner w.e.f. 30.06.2007 subject to vacation of the interim order. 5. The petitioner has filed this writ petition challenging the decision of the Board by which the applications have been invited for VRS. The said Scheme has been questioned by some of the aggrieved parties by filing series of writ petitions, leading case was W.P.(C) No.4241 of 2004 (Annexure-G/2), wherein the Division Bench of this Court has refused to interfere with the decision of the Government vis-à-vis the Corporation. In the light of this, it has been submitted that there is no scope left for the petitioner to ask for his continuation in service due to the policy decision taken by the State Government having been adopted by the Corporation. Heard the learned counsel for the petitioner and perused the documents available on record. 6. From perusal of the record, It is evident that the Orissa Lift Irrigation Corporation which is the Corporation under the State Government and under the control of the Department of Water Resources, wherein the State Government has taken decision dated 26.10.2002 through its Cabinet to dispense with 7341 number of employees for its restructuring. It is evident from the decision dated 26.10.2002 that against the regular employees numbers of 8331, only 2264 are to be retained with the Corporation and so far as NMR/DLR, all the employees in such category numbering to 1274 has been decided to be dispensed with. 7. It is evident from the decision dated 26.10.2002 that against the regular employees numbers of 8331, only 2264 are to be retained with the Corporation and so far as NMR/DLR, all the employees in such category numbering to 1274 has been decided to be dispensed with. 7. The petitioner being regular employee having been taken under the regular establishment is working as Pump Helper and the sanctioned post of the same is 29 with the Government and 3738 with the Corporation but all have been decided to be dispensed with, as would be evident from the last column under the heading “not to be maintained in OLIC” i.e. zero. 8. The Government has also taken decision to separate the surplus employees by offering them an opportunity under VRS/VSS by giving them benefit. Some of the aggrieved parties working in the Corporation approached this Court by challenging the Government decision in series of writ petition being W.P.(C) No. 4241 of 2004 along with its analogous cases, wherein the Division Bench of this Court vide order dated 3.8.2007 has refused to interfere with the Government decision, taking into consideration the financial crunch which the Corporation was facing due to dearth of work etc. but however so far as the claim of the compensation is concerned, appropriate direction has been given by this Court. 9. Opposite party-Corporation has invited applications for separation from VRS twice, but the petitioner has not chosen to make application rather approached this Court, wherein this Court vide order dated 10.01.2006 passed an interim order to the effect to maintain status quo till the next date and it has been found that by virtue of the said order, the petitioner is continuing in service. 10. This Court after taking into consideration, the order passed by the Division Bench of this Court in W.P.(C) No. 4241 of 2004, is of the considered view that when the decision of the Government has been declined to be interfered with showing no interference with the policy decision of the Government which has been taken for restructuring of the Corporation and as such passing positive order in this writ petition will not be proper rather it will amount to encroaching upon the order passed by the Division Bench of this Court. Further, since the Government has taken policy decision by taking care of the employees working under the Corporation and the post against which the petitioner is working i.e. Pump Helper, zero is to be maintained and as such the petitioner cannot be retained in service. 11. It has been disclosed in the counter affidavit that the opportunity has been given to the petitioner to be separated under the VRS but he has not availed rather the permission has been obtained by the Labour Commissioner for his retrenchment and as such while dismissing the writ petition by showing no interference in the impugned order, it would be appropriate to direct the opposite parties that if the petitioner is inclined to be separated from service, one chance is to be given for the ends of justice, so that he may take benefit under the VRS/VSS. With this observation and direction, the writ petition is disposed of.